(March 25, 1977)
ANN M. JOHNSON,
being first duly sworn, testified as follows:
DIRECT EXAMINATION BY MR. SIKMA:
Q. Tell the jury your name.
A. Ann M. Johnson.
Q. Where do you live?
A. Rapid City, South Dakota.
Q. And what is your occupation?
A. Stenographer.
Q. And for whom do you work?
A. The FBI.
Q. And was that your occupation on June 26th, 1975?
A. Yes.
Q. Do you remember where you were at about noon on June 26th, 1975?
A. I was in the office preparing to go to go to lunch.
Q. O.k. What was your job in the FBI office in Rapid City at that time?
A. I was a stenographer in which I take shorthand and {1652} transcribe it and answer the phones and the radio.
Q. In the room where you worked, how many other people worked that particular room?
A. There were six other agents that usually sat in there, and I and one other steno; and the senior resident agent sat in a room off of the one big room.
MR. TAIKEFF: Your Honor, I am sorry but the voice is not audible here.
THE COURT: I am having the same difficulty. You are requested to please speak up and into the microphone. Perhaps if you turn it a little bit and speak a little bit across it -- turn it a little more.
MR. TAIKEFF: Would it be possible, your Honor, for that question to be re-asked and start at the beginning of that answer?
MR. SIKMA: I will go --
THE COURT: (Interrupting) Do you want the reporter to read the question?
MR. SIKMA: Yes.
THE COURT: The reporter will read the question back.
(Question and answer were read by the reporter.)
Q. (By Mr. Sikma) Who was the other steno that was in the room with you?
A. Linda Price.
Q. And who was the senior resident agent that worked in the {1653} room off of your room?
A. George O'Clock.
Q. Now, would you tell us what happened, if anything unusual happened, at about noon on the 26th of June, 1975?
A. We heard radio transmissions that some agents were under fire.
Q. And do you know who was transmitting those radio transmissions?
A. Ron Williams.
Q. Did you recognize his voice?
A. Yes.
Q. Had you had occasion to listen to Ron Williams talk over the radio on other occasions?
A. Yes.
Q. What, if you recall, was the nature of those transcriptions
$A The first thing I heard was "There is something wrong here, we are being fired on."
Q. And about what time was that?
A. About 11:55.
Q. And what did you hear next?
A. Transmissions back and forth between Ron Williams and Gary Adams, trying to get a location on where Ron Williams was.
Q. About how much time was there between the first transmission concerning the fact that Ron Williams indicated he was being fired on, and the transmission that Gary Adams was responding {1654} to that call?
A. I really don't know.
Q. Would you say though it was -- could you give me an estimate of about how much time it was?
A. I would say only a matter of some seconds, maybe a minute or two.
Q. O.k. What did you hear next?
A. Just mainly transmissions back and forth, and the last thing I heard from Ron was -- I didn't really hear the words, but I heard like he kind of broke off and it sounded like a moan.
THE COURT: Speak up, please.
Q. (By Mr. Sikma) What, if anything, were you instructed to do at that time?
A. I was told to start taking notes.
Q. And were you able to hear the transcriptions or understand what the transcriptions were at that particular time?
MR. TAIKEFF: Your Honor, I trust Mr. Sikma meant transmissions?
MR. SIKMA: I am sorry, I did.
A. Not fully. I could hear him, yet I really didn't know what I was supposed to be taking down, whether I was supposed to be taking a summary or trying to get it sort of verbatim, so I really didn't know what I was doing.
Q. (By Mr. Sikma) Did anyone come to your assistance at that {1655} time?
A. Yes.
Q. Who was that?
A. George O'Clock.
Q. And what, if anything, did he do?
A. He would tell me more or less what was said, and I would write it down.
Q. You would take notes?
A. Yes.
Q. And how long did this go on, about?
A. Until -- well, only about 12:30, and then I was on my own.
Q. O.k. What did you do after that time?
A. I took notes the rest of the day.
Q. Do you recall the radio calls throughout that day, do you recall what was being said throughout the day?
A. Not real well, because it was so much, and I was on it all day. Not specifically.
Q. As a matter of procedure -- and you said the first half hour or so George O'Clock was telling you generally what was being said and you were taking notes. What did you do after that?
A. I tried to get down as close as I could just what was being said on the radio back and forth.
Q. Did you keep track of the time?
A. Yes, as close as I could. When the transmission would {1656} come in, I would try to look at the clock and get the time as close as possible.
Q. What did you do with the notes that you transcribed?
A. Well, I transcribed the notes onto a 302.
Q. And whose 302 was that?
A. Well, it is a 302 of George O'Clock in part. The actual first part of it is what he, you know, was telling me, which took notes on; and then after that it is really all my notes on that day.
Q. How long did you go on that particular day taking notes?
A. Until about 9:40 that night.
Q. What was Linda Price doing at this time?
A. She was answering the radio, or I mean, the telephone, I am sorry.
Q. And did she at any time assist you in taking down the radio messages?
A. Yes, whenever I needed to take a break.
Q. And about how many times did that take place during the course of the day?
A. Only about three, I think.
MR. SIKMA: May I have a moment, your Honor?
THE COURT: You may.
(Counsel confer.)
Q. (By Mr. Sikma) Defendants have marked Defendant's Exhibit 75. I will show you this and ask you whether or not you {1657} recognize what Defendant's Exhibit 75 is?
A. Yes.
Q. And what is that?
A. That's the transcription of what my notes were from that day.
Q. Now, would you look at that and tell me, if you can, what time it was, as noted on that transmission, that you started taking notes on your own without the assistance of Special Agent O'Clock?
A. About 12:36.
Q. That was the first time that you did not have his assistance, is that correct?
A. Yes.
Q. And to go throughout this document, how long into the evening did you take notes on these radio messages?
A. Well, the last entry is 8:50.
Q. I will direct your attention to Page 1 of that document, and tell me if, after reading it, you can tell me what the transmissions were between 11:55 and 12:10 p.m. -- 11:55 a.m. and 12:10 p,m. I will ask you if you will read them first, and then tell me if you recall, after reading them, what you heard.
A. (Examining) I don't recall hearing these direct, I mean myself.
Q. Now, up until 12:26, I believe, or 12:36, rather, you were receiving dictations from George O'Clock, is that correct?
{1658}
A. Yes.
Q. Do you recall any of those radio transmissions from your independent recollection without reading them?
A. Not very well, no.
(Counsel confer.)
#Q (By Mr. Sikma) What was the general nature of the radio transmissions, what was being said between 11:55 and 12:10 p.m.?
A. There was a general background of what had been happening, of the agents being fired at, and what was being done.
Q. O.k. What happened at 12:06?
A. Adams was receiving fire.
Q. And what happened at 12:10, approximately 12:10 p,m.?
A. An ambulance was called to go down there.
Q. O.k. and what happened --
THE COURT: (Interrupting) Excuse me. Would you repeat that? You didn't speak loud enough.
THE WITNESS: O.k. Ambulance was called to go down there.
Q. (By Mr. Sikma) O.k. and what happened at about 12:18 p.m.?
A. Adams was on the scene and he had been receiving fire.
Q. And what else happened?
A. He said that he saw a red pickup leaving the Jumping Bull Hall area, and the Pine Ridge Police were instructed to stop this pickup.
Q. And what happened at 12:21 p.m.?
{1659}
A. Adams and the BIA unit with Adams reported they both had flat tires, and they didn't know where it came from.
Q. What happened at 12:23 p.m.?
A. Adams stated there was firing from both directions at both Adams and the BIA reinforcement with him.
Q. Do you know from the transmissions what time Special Agent Hughes arrived on the scene?
A. At 12:24 p.m.
Q. And what happened at 12:27 p.m.?
A. Adams reported there was still firing, and they were receiving fire from Jumping Bull Hall.
Q. Now, approximately how long throughout the course of the afternoon, if you recall, did they receive fire or receive -- were they receiving fire in that area?
A. I don't recall.
MR. SIKMA: I have no further questions.
MR. TAIKEFF: May I inquire, your Honor?
THE COURT: You may.
CROSS EXAMINATION by MR. TAIKEFF:
Q. Miss Johnson, you have Defendant's Exhibit 75 for identification in front of you?
A. Yes.
Q. I am going to place before you, in addition, Defendant's Exhibits 81 and 82, after I show them to Mr. Sikma, so he will {1660} know what I am talking about.
(Counsel shows document to Mr. Sikma)
{1661}
This particular time I'm going to put them facedown. Okay.
How long have you been employed by the Federal Bureau of Investigation?
A. Since '72.
Q. Do you like working there?
A. Oh, yes.
Q. You do stenographic work amongst your other duties?
A. Yes.
Q. And does that involve the preparation of forms known as 302s?
A. Yes.
Q. Do you have any objection to my referring to them sometime as reports just for a short hand?
A. That's fine.
Q. Now as a general rule, the 302s or the reports are dictated to you by the agent whose 302 it is?
A. Right.
Q. And then I assume that you're one of the people in the office who types the reports and then gives the reports back to the agent who dictated it?
A. Yes.
Q. Now there were certain events which occurred in your office on June 26th that you've told us about in part, is that right?
{1662}
A. Yes.
Q. Now 302 as a rule contain a lot of precise detail, don't they?
A. Yes.
Q. And as a general rule they're meant to contain as much detail of events as are deemed important by the person writing the report, isn't that correct?
MR. SIKMA: Your Honor, I'd object to this as calling for a conclusion on the part of the witness.
THE COURT: The objection is sustained on the grounds of lack of foundation.
Q. (By Mr. Taikeff) Do you know from from your own experience that when an incident, perhaps one that only lasted a few moments or perhaps a fact which is not very complex is recorded in a 302, it is done with a great deal of detail and a great deal of language to make sure that every conceivable aspect is put down on paper, isn't that a fair description of how thoroughly and accurately 302 are prepared?
MR. SIKMA: Your Honor, I'd object. This calls for conclusion on the part of the witness. Not within her knowledge.
THE COURT: There is no showing that this witness has any expertise other than a stenographer who's typed 302s dictated by other people. That's the reason I sustained the first objection. {1663}
Q. (By Mr. Taikeff) There's a 302 in existence that was typed on June 28, 1975. It appears to be an interview of you by an agent named Leon Canton. Are you familiar with the existence of that 302?
A. Yes.
Q. Were you interviewed by Agent Canton?
A. Yes.
Q. Did he dictate the 302 or the content of the 302 after he interviewed you?
A. Yes.
Q. To whom did he dictate it?
A. Myself.
Q. And who typed it?
A. Myself.
Q. Now Agent Canton works out of what office?
A. He's in the Minneapolis division.
Q. And have you ever read that 302?
A. Yes.
Q. See if one of the two documents I gave you, specifically No. 81, is the document I have been questioning you about.
A. Yes, it is.
Q. Now look at that first paragraph. It tells your occupation, doesn't it?
A. Yes.
Q. And where you're assigned?
{1664}
A. Yes.
Q. And what room you work in?
A. Yes.
Q. And the city and state and building in which you work?
A. Uh-huh.
Q. Based on your experience in working with and preparing, or rather typing 302s, is that kind of detail unusual?
A. No.
Q. In fact, a rather prominent characteristic of 302s is that they contain a great deal of precise information and detail about every event that they talk about.
MR. SIKMA: Objection, Your Honor, the foundation has still not been established and this witness does not know what --
MR. TAIKEFF: Your Honor, please. I do not think Counsel should signal the witness what Counsel thinks the witness should say.
MR. SIKMA: Your Honor, I think that it's a legal matter of whether or not this witness is competent to answer that question. As a matter of law, in fact, she is not.
THE COURT: Sustained.
Q. (By Mr. Taikeff) How many 302s have you typed since you started working for the FBI?
A. There is no way to state.
Q. Yes, there is. How many do you type a day?
{1665}
A. It varies.
Q. Average day.
A. I suppose it could be at least ten, twelve.
Q. Do you read them after you type them?
A. No.
Q. Do you understand what's being said to you when the dictation is being given?
A. Usually.
Q. When an agent sits down with you, assuming you sit, and dictates a 302, do you have any sense of what he told you when you get finished taking that dictation?
A. Most of the time.
Q. As a general rule, when an agent dictates a 302, after the dictation has been completed but before you type, do you know in general terms what it was he just said to you in he course of the dictation?
A. I don't think so.
Q. You mean you have no memory of what he said to you?
A. Not well enough that I could state in general terms what ne whole thing was about.
Q. You mean you couldn't give a general idea of what it was just reported to you via his dictation?
A. I could probably pick out a few of the more prominent things that might have hit me, that I might have especially noticed while I was taking his dictation, but as far as the {1666} whole thing was about --
Q. I didn't ask you what the whole thing was about.
If, for instance, an agent described to you the fact and detail of having followed somebody during the afternoon you have had that experience, haven't you?
A. Yes.
Q. You would as a general rule know when you got finished taking that dictation that the agent had followed somebody, isn't that correct?
A. Yes.
Q. And you might remember some of the principle details, isn't that correct?
MR. SIKMA: Your Honor, I would object to this line of questioning as irrelevant and, further, I request I be able to ask one or two questions in voir dire for the purpose of making an objection to this line of questioning.
MR. TAIKEFF: I'm trying to lay the foundation which Your Honor requires.
THE COURT: Would Counsel approach the bench.
(Whereupon, the following proceedings were at the bench:)
THE COURT: I'm not sure that anyone can lay a foundation with this witness unless you can show that she has had some training relating to what is to go into 302s, what specific items should be recorded, what should not. In other words, {1667} exercising judgment. I don't think a stenographer simply reciting what somebody has dictated to her is qualified.
MR. TAIKEEFF: I can approach it in an entirely different way, Your Honor.
In response to this specific thing, Your Honor, just said, I am not trying to establish through this witness whether the 302s are done in conformity with the requirements of the FBI. I'm only seeking to establish a fact through her which is based on her own experience that anyone familiar with the English language would have an impression about after working on 302s for years. However, I can approach it in an entirely different way that probably will not be objectionable.
THE COURT: But what I am, the reason I'm sustained the objection is because of the fact that one agent may have recorded a fact she may not know. She may know that he did record a fact but she may not know why he selected that particular fact.
MR. TAIKEFF: I understand that. My point, Your Honor, is that I think that any intelligent person knows the difference between a narrative text that by its nature has a mired of detail, peripheral details, and one that narrates very specific major points. That's a facility every person who is literate and has a functioning mind is capable of. It is only Mr. Sikma's bold assertion that she is not capable {1668} or competent to answer the question. Any literate adult could answer that question. Giving a sample of writing, "Is that in your opinion something which is chalked full of detail?" And the Federal Rules of Evidence permit a lay witness to express such an opinion. That's the only thing I'm trying to get out of this witness and Mr. Sikma doesn't want me to get it in.
THE COURT: The impression I get is you're attempting to establish through this witness the significance or lack of significance of something that is recorded and I don't think that this witness has any --
MR. TAIKEFF: No.
THE COURT: -- expertise in this area.
MR. TAIKEFF: No. It is the absence of something I'm leading up to. But first --
THE COURT: That's exactly the reason that I am sustaining it, because that is a judgment factor to be exercised by the trained investigator who makes the determination. I don't think this witness, whether something was left out or not or the significance of something being left out or not is anything is witness could testify to.
MR. TAIKEFF: All right. I would like to ask some other questions along different lines.
THE COURT: You may do that.
(Whereupon, the following proceedings were had in the {1669} courtroom in the hearing and presence of the jury:)
Q. (By Mr. Taikeff) How did Agent Canton conduct the interview of you on June 28th? What happened?
A. Just asking questions on what I heard and what I was doing.
Q. Did he ask you whether you worked in room 260?
A. No.
Q. It's in that 302, isn't it?
A. He asked me if that's where I was at the time because there is, was another room that I could have been in.
Q. Did you tell him that your place of employment is room 260?
A. No.
Q. You knew this form was an interview form?
A. Yes.
Q. And you're the one who took dictation and typed it, right?
A. Yes.
Q. And it's your understanding, is it not, that a form is supposed to contain what the person being interviewed has said, right?
MR. SIKMA: Your Honor, I would object to this. Outside of the knowledge of this witness. I would make a competency objection.
Q. (By Mr. Taikeff) Didn't you just say yes to my question?
THE COURT: I am going to overrule that objection.
{1670}
Q. (By Mr. Taikeff) I'll withdraw the last question and ask you whether it's your understanding that an interview report is supposed to report what the person being interviewed has said?
A. Yes.
Q. No more, right? A person taking the interview is not
supposed to make up things, isn't correct.
MR. SIKMA: Your Honor, I would object to this.
THE COURT: I think that we're getting to the area we discussed at the bench. That objection is sustained.
{1671}
Q. Did you tell Agent Canton all of the things which you considered important concerning your activities on June 26, 1975 when he interviewed you on June 28th? Yes or no.
MR. SIKMA: Your Honor, I'd object to that as irrelevant.
THE COURT: Overruled.
Q. (By Mr. Taikeff) Do you want the question again?
A. No. I just wasn't sure I was supposed to answer.
Q. Yes. If the Judge says overruled to an objection you may answer.
A. Okay.
Q. Are you nervous?
Q. Yes.
THE COURT: The reporter will read the question to the witness.
(Whereupon, question read back: "Question: Did you tell Agent Canton all of the things which you considered important concerning your activities on June 26, 1975 when he interviewed you on June 28th? Yes or no.")
A. Yes.
Q. (By Mr. Taikeff) Now, did you tell Agent Canton that at or about 11:50 or 11:55 A.M. you had been taking dictation in a different room other than Room 260, and that when you complete doing that work you returned to Room 260 at approximately 11:50 A.M.?
A. Yes.
{1672}
Q. To what question did you give him that information?
A. He asked me what I had been doing, and that's when I said had been taking dictation and was preparing to go to lunch.
A. nd we prepared to go to that room to go to lunch because that's where our purses and everything were.
Q. Now, there's some sort of a speaker on the wall, or on a table in Room 260?
A. The radio, it's on the table next to my desk.
Q. And is it fair to say that as a general rule what comes over that radio could be heard by anyone with normal hearing the room?
A. Yes.
Q. And was the radio functioning as well as usual on that particular day?
A. Yes.
Q. Now, take a look at Defendant's Exhibit 75 for identification. That's also a 302, isn't it?
A. Yes.
Q. It's a long one, it's thirty-six pages long; is that correct?
A. Yes.
Q. How do you know that something happened around 12:36 P.M. June 26, 1975 that changed what you were doing, or what was happening in connection with your work?
A. I'm not sure I know what you mean.
{1673}
Q. Well, maybe I've stated the wrong time and I will be happy to be corrected by Mr. Sikma if I did.
But I thought you said on your direct examination that something changed for you that day at or about 12:36?
A. Well, I was taking the notes on my own from then on.
Q. How do you remember that?
A. Just by more or less locking at the notes I can recall from hearing those things personally.
Q. When you were looking at what notes?
A. These here (indicating).
Q. Let's be careful about the use of the word "notes". You have Defendant's Exhibit 75 for identification in front of you?
A. Right.
Q. That's a typewritten 302?
A. Right.
Q. When you took notes in the office you took them with a pen or pencil and wrote them on a different piece of paper; is that correct?
A. Yes.
Q. So when we talk about notes, let's be referring to the notes you took with your hand.
A. All right.
Q. Okay. Now, I ask you how is it that you are now able to remember almost two years later that it was at 12:36 P.M. that the circumstances under which you were working changed on {1674} June 26, 1975?
A. It's by looking at this. That's the first thing I recall personally hearing.
Q. Ms. Johnson, in your direct examination didn't Mr. Sikma ask you a question about the first transmission that came in from Ron Williams?
A. Yes. But that was on, that was not taken down in notes at because at that time I was not taking notes.
Q. Ms. Johnson, please try to answer my question as I ask it.
I asked you whether on direct examination you were asked to tell us about the first transmission that came in that caught your attention; is that correct?
A. Yes.
Q. And you told us the content of that transmission, did you not?
A. Yes.
Q. From your memory here in this courtroom?
A. Yes.
Q. So a few moments ago you said that the first transmission you took down on your own was at 12:36. You don't mean to say that that was the first transmission that you heard or have any memory of, did you mean to say?
A. That's the first transmission on this 302 here.
Q. Forget Defense Exhibit 75 for the moment. I'm talking to {1675} you about facts, historical facts which have nothing to do at the moment with what's on that piece of paper.
Did you hear the initial transmission?
A. Yes.
Q. Or what you believed to be the initial transmission from Williams?
A. Yes.
Q. And did you hear additional transmissions?
A. Yes.
Q. And do you have some recollection of those transmissions?
A. Some.
Q. I'm not asking you whether you know them exactly verbatim, you understand that?
A. Yes.
Q. Nor am I asking you them today as well as you did on June 28th, but you did hear transmissions prior to 12:36, did you not?
A. Yes.
Q. And they were in the English language?
A. Yes.
Q. And you have some recollection of at least some of them, don't you?
A. Yes.
Q. When you were interviewed -- do you have Defendant's Exhibit 81 in front of you?
{1676}
A. Yes.
Q. Is it face up?
A. Yes.
Q. Please turn it over.
When you were interviewed on June 28th by Agent Canton did he ask you questions about any portion of the transmissions which you then on June 28th remembered?
A. Yes.
Q. And did you tell him what you then remembered?
A. Yes.
Q. And did you either quote or paraphrase, depending on how accurate your memory was, some of those transmissions?
A. Yes.
Q. Now, did he make specific reference to certain transmission and ask you whether you have heard those, or did he say to you, "Tell us, tell me what you heard," and you just told him what you heard? Which way did it go, if it went either of those two ways?
A. He asked me what I had heard.
Q. And then on June 28th you told him, based on what was then your best recollection, what you remembered, right?
A. Yes.
Q. And you told him of a number of transmissions which you heard before 12:26 -- 12:36 in that interview; isn't that correct?
{1677}
A. Yes.
Q. Did you use any notes in the course of your interview?
A. No.
Q. What did you do with your notes made during the transmissions as they were actually occurring?
A. They were destroyed.
Q. I beg your pardon?
A. They were destroyed.
Q. Who destroyed them?
A. I did a few months later.
Q. Did Agent Canton ask you the names of the people who were resent in Room 260?
A. Yes.
Q. And did he ask you what were you doing while the transmissions were coming in?
A. I don't recall.
Q. Well, I assume that he asked you whether you were present, right?
A. Yes.
Q. And I assume that he asked you whether you heard the transmissions?
A. Yes.
Q. And I assume he asked you for the content of some of the transmissions, right?
A. Yes.
{1678}
Q. Didn't he ask you what your official duties were in connection with the transmissions?
A. I don't recall if he asked that at all.
Q. Take a look at the opening paragraph, first paragraph on the first page of Defendant's Exhibit 75 for identification. Read it to yourself, it's not in evidence.
That's part of the 302, is it not?
A. Yes.
Q. Are the statements in that paragraph true or false?
A. True.
Q. Then is it not a fact that the radio transmissions were monitored by stenographer, Ann M. Johnson, on June 26, 1975, to the best of her ability and are not intended as verbatim; isn't that factually true?
A. Yes.
Q. You never told Agent Canton that you got any help from anyone from 11:55 to 12:36, did you?
A. No.
Q. Why not?
A. He didn't ask.
Q. Did you think it was important?
A. I didn't really think so. To me it was part of the dictation.
Q. What do you mean "it was part of the dictation"?
A. Well, part of my taking down the notes.
{1679}
Q. Let's go back to 12:36 P.M., not the entry there, your memory. Couldn't it have been at 12:10 P.M. that Agent O'Clock stopped helping you instead of 12:36?
A. I don't believe so.
Q. Why not?
A. It's just to the best of my recollection. I don't, you know.
Q. Are you saying that you have a specific recollection that goes back to the afternoon of June 26th that at 12:36 he stopped helping you?
A. No. I'm saying that by having looking at these, this 302.
Q. Yes. That's No. 75 for identification?
A. Right.
Q. I have to keep saying those numbers so the record is complete.
Go ahead.
A. Okay. That by looking at this I usually can recognize something that you occurred yourself, especially when you read it. And by looking at this, the first thing I can recall hearing myself is the 12:36 entry.
Q. When you use the expression "hearing myself," are you telling us that until 12:26 you yourself heard nothing coming Dyer the speaker, but you only got it from Agent O'Clock? Or are you saying that you heard it, he heard it and he was helping you in your note taking?
{1680}
A. That we both heard it and he was helping me in my note taking.
Q. As far as you know did he ask you while he was helping you to write anything down which was inconsistent with what your ear had heard?
A. No. Sometimes I didn't catch the whole thing, though, and he would fill it in for me.
Q. Can you tell with respect to the 12:18 P.M. entry whether you heard that one yourself?
A. I don't recall it at all.
Q. Does that mean you don't recall whether you heard it, or you don't recall anything about it at all?
A. I just don't recall it.
Q. Now, when Agent O'Clock was working with you was he working in his official capacity?
A. Yes.
MR. TAIKEFF: Excuse me one moment, Your Honor.
{1681}
(Counsel confer.)
MR. TAIKEFF: All right, your Honor, battle by stipulation.
Instead of offering the entire document, we offer the first two pages of Defendant's Exhibit 75 for identification.
MR. SIKMA: We have no objection to that, your Honor.
MR. TAIKEFF: I have no further questions of this witness.
THE COURT: Just a moment. I want to be sure I understand the stipulation. You are offering it in evidence, the first two pages of 75?
MR. TAIKEFF: That's correct.
THE COURT: There is no objection?
MR. SIKMA: No objection.
THE COURT: Very well. The first two pages of 75 are received in evidence.
(The first two pages of Exhibit 75 are received in evidence.)
MR. LOWE: Counsel, wait just a moment.
MR. SIKMA: I have no further questions of the witness, your Honor.
MR. LOWE: Just a moment.
MR. TAIKEFF: May we approach, your Honor?
THE COURT: You may.
{1682}
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF: Your Honor, that leaves the rest of the document without a proper foundation. I would assume that's the Government's position?
MR. SIKMA: Yes, your Honor.
MR. TAIKEFF: Now, there remains one witness who could complete the foundation, and that is Agent O'Clock. We have two agents coming on on Monday, Agent Waring and Agent Hughes; and I suspect that this document may be necessary in the course of cross-examining them, and I really don't know why the Government is resisting the offer of the document, but it was my understanding that some reasonable opportunity would be afforded the defense to lay the foundation so that your Honor could make a final ruling on this entire document; and it was suggested by Mr. Hultman when that was being discussed at the side bar that we do it in front of the jury, and they produced this witness.
However, I think the record will show -- and I am basing this upon, not a memory, but a past recollection recorded, that Mr. Sikma said in open court during the argument on this subject -- we had a rather lengthy argument -- that Agent O'Clock was not present during the first half hour and the reason I believe that that was {1683} his statement -- I will have to search the record to find it -- is because on the second page of the 302 it specifically said that he was present, and I made a little footnote for a potential cross examination question to see whether there would be a contradiction between the testimony to be given and what it said there, and Mr. Sikma's remark.
Now, maybe he misspoke when he said that, but now we are dealing with the exact opposite. We not only have him present, but he is present and performing an extra function. It seems to me it would be appropriate to request at this time that Agent O'Clock be made available Monday morning so that we can finally explore the foundation of this document because we always seem to be frustrated by some missing link; and then if appropriate, get the entire document into evidence and so we can use it in cross-examining here and use it --
MR. LOWE: (Interrupting) May I make an inquiry?
MR. SIKMA: Just a moment. Your Honor --
MR. CROOKS: (Interrupting) Would you mind letting us finish?
MR. SIKMA: (Continuing) -- I am going to object to this for the reason that they went into it on the grounds back there that they were concerned about the first two pages of this; and I had a misunderstanding with regard to the initial part of that, that the initial part of this -- {1684} I thought that this was a summary, was a summary in fact of Special Agent O'Clock, the first part; and I thought that this would solve this problem by going along with this and saving some time; but if counsel is going to attempt to put this entire document in, I think it clutters up the record. I am going to resist it, and I am going to resist it very strenuously I am going to resist putting Agent O'Clock on out of order because it is totally irrelevant. It has no bearing on the facts of the case. As far as this case is concerned, it is totally immaterial, and for this reason we are going to resist it.
MR. LOWE: May I just make an inquiry of Mr. Sikma? It may save us a lot of time, Judge.
On a lot of Government exhibits you asked us to stipulate foundation without waiving arguments about relevancy. It seems to me that what you are talking about here is relevancy. I doubt that you would challenge the foundation of the accuracy of an agent's 302.
A. re you willing to stipulate foundation in order to present the question of law to the Judge as to whether it is relevant or not and avoid a lot of time delay in having to call Agent O'Clock in? It seems to me that really would save us a lot of time and trouble here.
MR. SIKMA: I would have to consider that later. I don't think that foundation could be established through {1685} Agent O'Clock or any other witness, the type of foundation that would make this document admissible.
If the Defendant insists on calling Special Agent O'Clock who has retired subsequently in their own case, there is nothing we can do about it, but we are not going to go any further on this issue with regard to this unless we are ordered to do so by an order of the Court.
MR. TAIKEFF: I think, your Honor, unless your Honor is going to rule that this witness is not competent to give the testimony she gave, that the foundation is really already in. She says he was listening, she was listening, he was telling her what to write down, June the 1st, 41 minutes approximately. She was an FBI employee. He was a Special Agent. Whether he made a mistake goes to the weight, not to the admissibility. It was put down on a 302 which is an official FBI report, and it stands for what it says it is. The jury should know.
MR. SIKMA: Your Honor, this first 40 minutes, or whatever, is already in evidence, and we can argue about that.
MR. TAIKEFF: That's the point. The foundation is already here on the record.
MR. SIKMA: We have waived it to this limit, and I think the rest of it the Court has ruled on; and I think that, unless the Court changes its ruling, that we are {1686} going to retain our earlier position.
MR. TAIKEFF: It is the only document that purports to relate what was transmitted that day. There are no original notes left. It has perhaps not the fullest exploration of what weight to give to the document because Agent O'Clock is not here to testify; but if the Government feels that the document should be given less weight than it would merit on its face, the burden would be upon them to introduce evidence to show why the jury should not accept this document for what it says.
It puzzles me that the Government tries to keep out a document which is apparently prepared by the FBI in a meticulous and detailed fashion, which says it doesn't purport to quote but rather to give a summary of what was going one. That's the only piece of evidence of what was happening over that radio in existence in the world.
THE COURT: Well, I am still going to reserve ruling. I am going to review this colloquy and think about it over the weekend.
MR. TAIKEFF: Thank you, your Honor.
MR. LOWE: May I raise one question? I presume Miss Johnson wants to go home?
MR. SIKMA Yes, and so does Mrs. Price because she has a small child at home.
MR. TAIKEFF: We can agree --
{1687}
MR. LOWE: (Interrupting) I have a couple of questions. I don't care if you want to excuse the jury and do it out of the presence of the jury and have something like that rather than to have to call her back.
MR. SIKMA: What do you want to know?
MR. LOWE: I want to have it on the record that these times were times -- let's put it this way -- that she gave to Agent O'Clock times which she herself observed were coincident with the items she wrote down here; and then either by stipulation with you or by calling Agent O'Clock, we would want to have Agent O'Clock say that she accurately recorded the times she gave to him, similarly to lay the foundation that these times and these transmissions are accurate.
MR. TAIKEFF: Times are accurate.
MR. LOWE: Put it in the record, that's all.
MR. SIKMA: I think that the defense misunderstands what the witness has testified to. The witness testified that during the first --
MR TAIKEFF: 41 minutes.
MR. SIKMA: (Continuing) -- 41 minutes, Special Agent O'Clock was there. She is making the estimate of the time in this period of time.
MR. LOWE: I understand that, during the first 41 minutes.
{1688}
MR. SIKMA: He is making a statement of what was said.
MR. LOWE: I assume that we would have her put this on the record that after 12:36 -- I am assuming he interviewed her with the assistance of reading her notes -- but they went down the notes and he used that to prepare the 302; but that the notes had the time, 12:41, 2:55 reading on the notes.
MR. SIKMA: We will stipulate to that, that's generally what she did, She made the estimate.
MR. LOWE: Agent O'Clock would say that he accurately broke down whatever times it was she gave him. That's all I am talking about, getting it in the record.
MR. SIKMA: I think she actually typed down the times when she typed the notes. She typed it.
MR. TAIKEFF: She read a time off the clock in the office. You would be prepared to stipulate that's a fact?
MR. SIKMA: We would.
MR. LOWE: Probably stipulate also to the best -- I think it says here to the best of her ability what she wrote down, you know, at a given time here, with the names and everything, was as accurate as she could write it down as she was listening to it. Agent O'Clock would say that this is an accurate depiction of what she told him, basically the same.
{1689}
MR. SIKMA: I think we would say that.
MR. LOWE: That would be good.
(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
THE COURT: It is five minutes almost past the time that I usually promised you that you can leave the courtroom.
The Court is in recess until 9:00 o'clock, Monday morning; and would ask the jury to remember that you must continue to keep an open mind and not discuss the case.
MR. SIKMA: Your Honor, I beg the Court's pardon. This witness is excused, I take it?
MR. TAIKEFF: Yes, your Honor.
THE COURT: We almost left you in the witness chair. You are excused.
(Witness excused)